FCO guidance (redacted)

Chapter 12 – Courts and Trials

If appropriate, we will consider approaching the local authorities if you are not treated in line with internationally-accepted standards. This may include where your trial does not follow internationally-recognised standards for a fair trial or is unreasonably delayed compared to local cases. We can also help to put you in contact with the charity Fair Trials International.


Key points

  • British nationals often need legal advice when abroad. An up-to-date list of local lawyers is essential
  • Be aware of the international standards of fair trials and raise any concerns about the conduct of a criminal prosecution with Consular Directorate
  • Wherever there is a possibility that the death penalty may be imposed upon a British national, consult Consular Directorate as soon as possible. Our aim in all these cases is to try and avoid the imposition of a death sentence and to have any imposed sentence commuted to a term of imprisonment.


Attending court hearings: If a British national asks you to attend a court hearing as an observer you should explain that consular staff do not normally attend court hearings. If asked, you should explain that we are not legally trained and cannot, therefore, comment on proceedings; nor can we provide interpretation of those proceedings. There are serious resource implications in sending one or more members of a consular section as observers to hearings that may run for several days.

  

Intervention

8. HMG is normally entitled to intervene when we have concerns for the health, welfare or human rights of British nationals or fear they are being discriminated against. Consular officials at Post should try to:

  • watch for these issues and take seriously any complaints they receive;
  • consider possible grounds for intervention and the most appropriate and effective way of doing so;
  • contact Consular Directorate and our Human Rights Adviser in Assistance Policy & Prisoners Section for support and advice.

9. Note that we should avoid anything that constitutes interference.

  

Grounds for intervention

10. The criminal process can differ greatly from country to country, and issues of human rights, discrimination and delay can arise at different stages in many different ways. Many issues are more appropriately and effectively addressed by the defendant or their lawyer. But there are also occasions we can and should consider intervening. For example:

  • Discrimination: Is the defendant being treated worse than local nationals? Or is s/he being discriminated against on grounds of sex, race or religion?

NOTE: British nationals should be treated the same as local nationals and in accordance with international human rights law, whichever is the higher standard. Equal treatment as local nationals is not generally a defence to the breach of international minimum standards or human rights.

  

  • Charges: Defendants should be informed of the charges against them promptly, and in a language they understand. This is likely to be crucial in future proceedings.
  • Preparation of defence: Adequate facilities should be made available to prepare their defence. They should have access to necessary documents/evidence and confidential contact with their lawyer.
  • Trial within a reasonable time: What is considered a ‘reasonable time’ will depend on the facts and complexity of the case; whether the defendant has deliberately obstructed proceedings; and how the prosecution has behaved.
  • Legal assistance: Defendants should be able to represent themselves or instruct a lawyer. If they are unable to pay, a lawyer should be made available free of charge, where it would be in the ‘interests of justice’ to do so.
  • Assistance of an interpreter: If required, defendants should have access to an interpreter free of charge during court proceedings. This includes the translation of documents and statements necessary to establish a fair trial.
  • Independent and impartial court: The court or tribunal must be established by law and free from interference. Judges must be and be seen to be impartial and independent.
  • Innocent until proven guilty: Defendants should be presumed innocent until proven guilty. Defendants have the right not to be forced to testify or confess guilt: any evidence obtained by force should not be used against them.
  • Fair and public hearing: Hearings should normally be held in public; members of the public and the press should be allowed to attend. There are limited exceptions to this, e.g. in cases concerning national security, public order and morals. Both parties should have a reasonable opportunity to present their case and call and cross-examine witnesses. Both parties should be treated equally.
  • Right to be present at trial: Defendants have a right to be present during their trial. This includes being able to hear, understand, and follow proceedings.
  • Appeal: Defendants have a right to have their sentence and conviction reviewed by a higher tribunal/court according to law.
  • Corporal punishment: We will consider registering our disapproval of corporal punishment (caning, lashes etc.) even if it is legal in that country. (The defendant’s views will also be taken into account.)
  • Bail: We will rarely intervene on bail conditions unless there are grounds to suggest due process has not been followed or the court has discriminated against the defendant. Note: foreign nationals will frequently be denied bail on the often justifiable grounds that they pose a greater flight risk.
  • Death penalty
  • Miscarriages of justice
  • Torture

  

11. This description of basic rights and standards is only intended as a general guide. Consular staff should familiarise themselves with this table when dealing with criminal trials. Post should note problems British defendants regularly face and local practices in those areas. For example, are interpretation services only provided on the day of the trial or sooner? Do British nationals regularly face severe delay? You might also consult your Honorary Legal Adviser as well as Chancery Section and DfID. The completed table should be available to everyone in the Consular Section and Country Casework Team.


Interventions: who & how?

12. Once we have established the grounds for intervention we need to consider whether to intervene in a particular case. We do not have to intervene even if we have grounds to do so. There may be many reasons not to do so, not least because we may judge intervention to be likely to be counterproductive. Where we have the grounds and decide upon a course of action, interventions should be appropriate and effective. We should decide who we should intervene with (e.g. the police, the prosecutor, the MFA) and how to do so. We should not do anything that constitutes interference in the internal affairs of a sovereign state and should be aware of other cases, relationships and priorities. But we should promote the human rights of British nationals and can remind local authorities of their international obligations.


  • Consider to whom we should address our concerns. Who is best placed to make a difference: the police, the prosecution, the Ministry of Foreign Affairs?
  • Understand the local systems – who is responsible for what, who can influence who – and develop strong relationships with key authorities. Remember, your relationships are only valuable if they are used to assist British nationals.
  • Consider who should represent us at each stage: a consular official, the head of mission or a minister? It may be useful to leave some room to escalate the issue.


13. Lobbying local authorities can take many forms, and is often an ongoing process. You may wish to consider the following:


Consular officers can check the progress of a case, most often through direct contact with the court registrar, and consider further representations as a result.


Expressions of interest are an easy and discreet way to let local authorities know that we are following a case and can prevent problems further down the line. They can serve to bring a local case to the attention of central authorities. It is important to emphasise that we do not intend to interfere or pass judgment on the substance of the case, e.g. guilt or innocence. Expressions of interest can come from any level, including ministerial, and should be addressed to the executive arms of government, not the courts themselves.


Consider raising specific concerns orally or in writing with local authorities at whatever level you think appropriate and effective. A simple well-targeted phone call may be enough.


Notes verbale are a more formal way to raise our concerns, and often carry greater weight with local authorities. They are a good way to remind local authorities of their international obligations, e.g. on the treatment of hunger strikers.


Diplomatic representations may prove necessary if less senior consular representatives are proving ineffective. It might help to discuss the issue with chancery colleagues; there may be cross-over with broader human rights and projects work.


Similarly, consider ministerial representations, in the form of a letter or a phone call if diplomatic representations are insufficient. Also consider referring to previous ministerial statements or expressions of interest to lower level representations.


Use your imagination and find out who is visiting: there are many other ways to bring pressure to bear on host governments. 


We have sought the support of MPs and MEPs, NGOs, the Foreign Affairs Committee, the Mayor and Lord Mayor of London and the Royal Family. EU and Commonwealth colleagues may also face similar difficulties and be willing to support.